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Faith-Based Arbitration: Friend Or Foe? an Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts

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Faith-Based Arbitration: Friend Or Foe? an Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts Fordham Law Review Volume 75 Issue 1 Article 11 2006 Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts Caryn Litt Wolfe Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Caryn Litt Wolfe, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts, 75 Fordham L. Rev. 427 (2006). Available at: https://ir.lawnet.fordham.edu/flr/vol75/iss1/11 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts Cover Page Footnote J.D. Candidate, 2007, Fordham University School of Law. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol75/iss1/11 FAITH-BASED ARBITRATION: FRIEND OR FOE? AN EVALUATION OF RELIGIOUS ARBITRATION SYSTEMS AND THEIR INTERACTION WITH SECULAR COURTS Caryn Litt Wolfe* INTRODUCTION Susan and Boaz Avitzur were married in a traditional Jewish ceremony in 1966.1 As part of the ceremony, the couple signed a ketubah, or marriage contract. 2 The contract provided in part that they would recognize a particular beth din, or Jewish court, as having the power to resolve any disputes that might arise between the couple in the future.3 Susan and Boaz's marriage ended in civil divorce in 1978. 4 Boaz, however, refused to appear before the beth din, and Susan was therefore unable to receive a Jewish divorce. 5 Susan brought Boaz to court, hoping to have the court compel him to submit to Jewish arbitration, as he had agreed to in their marriage contract. 6 The New York Court of Appeals ruled that their agreement to arbitrate any future disputes was valid and ordered Boaz to appear before the beth din.7 Over the past half century, those facing legal conflicts have increasingly turned to private arbitration to resolve their disputes rather than resolving them through litigation. 8 Parties have recognized the significant advantages of arbitration, and United States courts have been very willing to unburden their caseloads onto private arbitration and other methods of dispute resolution. 9 Along with general arbitration, faith-based arbitration-a process in which arbitrators apply religious principles to resolve disputes- * J.D. Candidate, 2007, Fordham Universtiy School of Law. 1. Avitzur v. Avitzur, 446 N.E.2d 136, 137 (N.Y. 1983). 2. Id. 3. Id. 4. Id. 5. Id. In Judaism, the attainment of a Jewish divorce is extremely significant, especially for the woman. See infra notes 195-98 and accompanying text. 6. Avitzur, 446 N.E.2d at 137. 7. Id. at 139. 8. See infra notes 56-81 and accompanying text. 9. See infra notes 41-49 and accompanying text. FORDHAM LAW REVIEW [Vol. 75 is common today, as well.10 As with ordinary arbitration, the courts have generally been accepting of faith-based arbitration.'l While faith-based arbitration is utilized in multiple areas of law, 12 its use in the context of family law deserves special attention because family law society, and religious doctrines often involves more vulnerable members of 13 used in deciding family law issues may present human rights concerns. Indeed, in September 2005, the premier of Ontario, Canada rejected a proposal to establish Islamic arbitration panels, putting its other already existing faith-based arbitration systems at risk. 14 The popular uproar and severe government response to the use of religious arbitration in Ontario provides an interesting contrast to the attitude of the United States toward faith-based arbitration and prompts an evaluation of the system as it 15 currently exists. Part I of this Note provides an overview of faith-based arbitration in the United States, placed in the context of regular arbitration as a whole, focusing on arbitration in the family law context and the relationship between arbitration and secular courts. Part II examines in detail the reasons that faith-based arbitration is necessary and beneficial, and, alternatively, the disadvantages to such a system. Part III suggests that, in light of both the compelling justifications for it as well as the intense criticism hurled against it, religious arbitration systems should be maintained, although with more oversight. I. THE USE OF FAITH-BASED ARBITRATION IN FAMILY LAW While the United States accepts systems of religious arbitration, it is by no means obvious that its current approach to faith-based arbitration is the most appropriate. The arguments for and against faith-based arbitration can best be evaluated after considering its background. First, this part provides an overview of arbitration and its benefits in general in the context of other types of alternative dispute resolution ("ADR"). 16 Next, it presents a brief history of the growth and discusses the many current uses of arbitration in the United States. 17 It then turns to an overview of the development and 18 part also state of existence of faith-based arbitration in particular. This 19 discusses the interaction of faith-based arbitration with secular courts. Finally, this part highlights the special human rights dangers involved in 10. See infra notes 97-126 and accompanying text. 11. See infra notes 61-65, 185-89 and accompanying text. 12. See infra note 105 and accompanying text. 13. See infra Part I.E. 14. See infra Part I.F. 15. See infra Part I.F. 16. See infra Part I.A. 17. See infra Part I.B. 18. See infra Part I.C. 19. See infra Part I.D. 2006] FAITH-BASED ARBITRATION: FRIEND OR FOE? 429 using religious arbitration in the family law context,2 0 contrasting the Canadian reaction to the growth of faith-based arbitration with that of the 2 1 United States. A. GeneralDiscussion ofADR and Arbitration It is important to understand arbitration in the context of ADR. ADR refers to all methods of resolving a dispute other than litigation.22 While ADR can take almost any form, the most common types are negotiation, mediation, collaborative law, and arbitration.23 In negotiation, the most informal type of ADR, the two opposing parties work together in a conciliatory manner in order to reach a compromise. 24 Attorneys are allowed to participate but their presence is not required. 25 Mediation is similar to negotiation, but it involves a third party whose role is to facilitate communication between the two parties and help them reach an acceptable resolution to their dispute.2 6 The mediator listens to the parties, either together or separately, and sometimes collects documents and interviews witnesses in an effort to identify the strengths and weaknesses of each party's argument so that they can rationally reach an agreement.27 The mediator helps the parties understand the underlying problems and interests and makes them aware of the options that will help them resolve the dispute. 28 Although the parties agree to mediation through contract, 29 the mediator's suggestions are not binding. 30 Collaborative law is largely distinguished from negotiation and mediation by the required inclusion of attorneys and any other professionals necessary to resolve the dispute. 3 1 In collaborative law, the parties sign a contract to work exclusively toward the 20. See infra Part I.E. 21. See infra Part I.F. 22. Abraham P. Ordover & Andrea Doneff, Alternatives to Litigation: Mediation, Arbitration, and the Art of Dispute Resolution 5 (2d ed. 2002). 23. See id. at 7-10; see also Sheila M. Gutterman, Collaborative Law: A New Model for Dispute Resolution 14-17 (2004). For a summary of other, less common forms of alternative dispute resolution ("ADR"), see Ordover & Doneff, supra note 22, at 11-12 (discussing types of ADR such as settlement week, summary jury trials, mini trials, and rent-a-judge). 24. Ordover & Doneff, supra note 22, at 7. While negotiation occurs often in everyday life, in the legal context negotiation most commonly serves as the basis for other types of ADR, as most disputes involve more people than just the two disputing parties. See id. at 7- 8. 25. Id. at 7. 26. Gutterman, supra note 23, at 15-16. Mediation has been used, for instance, to resolve environmental disputes. See Matthew Patrick Clagett, Environmental ADR and Negotiated Rule and Policy Making: Criticisms of the Institutefor Environmental Conflict Resolution and the Environmental Protection Agency, 15 Tul. Envtl. L.J. 409, 411-14 (2002). 27. Steven C. Bennett, Arbitration: Essential Concepts 4 (2002). 28. Ordover & Doneff, supra note 22, at 8. The authors emphasize that in mediation the two parties must feel that the resolution is fair. Id. 29. Bennett, supra note 27, at 48. 30. Id. (noting that mediators cannot impose a settlement). 31. See Gutterman, supra note 23, at 16. 430 FORDHAM LAW REVIEW [Vol. 75 goal of settlement, and if the dispute does not settle, everyone involved must withdraw from the case.32 This form of ADR still focuses on the needs and interests of the parties, and the goal remains to reach an 33 agreement which satisfies both parties. The most traditional form of ADR, arbitration, differs from the other modes of ADR in that an arbitrator or panel of arbitrators gathers information, including documents, briefings, and witness testimony, and makes a decision that is binding on the parties. 34 The-parties can contract privately regarding the range of issues to be addressed, the scope of relief to be awarded, and any procedural aspects of the arbitration.
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